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Should You Pay to Premium Process Your H-1B Cap Case

The five-day window for the 2015 H-1B cap season is just over a month away, and this is the time for employers to make decisions on processing their cap-subject petitions. The H-1B petition has the highest filing fees per petition, of all the nonimmigrant visa options. The USCIS filing fee for an initial H-1B petition comes to $1725 for employers with 25 or less full-time equivalent employees, and $2475 for employers with more than 25 full-time equivalent employees. These filing fees are comprised of:

The regular USCIS filing fee of $325;

A $500 Fraud Prevention and Detection fee, authorized by the H-1B Visa Reform Act of 2004; and

Either an additional $750 or $1500 fee (depending upon whether the employer has more than 25 full-time equivalent employees) for the American Competitiveness and Workforce Improvement Act of 1998, which was increased and made permanent with the H-1B Visa Reform Act of 2004.

There is yet an additional $2000 fee for employers who employ more than 50 employees in the U.S., if more than 50% of employees are in either H-1B, L-1A, or L-1B status.
These are the REQUIRED fees to submit an H-1B petition. This mean that it can costs employers up to $4475 just in the required filing fees for each H-1B application.

The premium processing fee is an ADDITIONAL $1225 for the USCIS to adjudicate the petition within 15 days. As an immigration lawyer, I have often explained to employers that premium processing does not necessarily increase the odds of a petition being selected for the lottery. In fact, because of the H-1B cap lottery, premium processing works a little differently in this context. The 15-day count does not begin until AFTER the lottery petitions are selected. Last year, the 15-day premium processing count did not begin until April 28, 2014.

Even when a cap-subject case is selected in the lottery, and approved, the foreign-national employee does not start working in H-1B status until October 1st. So what would be the benefit of paying the premium processing fee and having the petition approved as early as March? One answer is that the foreign-national - and often the employer as well - just want to know the outcome of their petition so that they can plan accordingly. Although there are restrictions on which fees an employee can pay, many employees are willing to pay this additional fee so that they have peace of mind moving forward.

Sometimes a foreign national decides to change jobs before October 1st. The subject of "porting" H-1B employers is the subject of another post, but those foreign nationals will want to be able to show that they have been "counted" in the current H-1B cap before having a new H-1B for a new employer submitted. This would be a good reason why the employee would want to submit the premium processing fee.

Another reason is that those foreign-nationals who are in F-1 status who obtained employment authorization through Optional Practical Training (OPT) upon graduation, may need to take advantage of the "cap gap" extension. Students whose OPT was valid at the time of filing the H-1B petition, but for whom their OPT will expire before October 1st, will remain in valid status and can continue to work through September 30 while the H-1B petition is pending or if it is approved before October 1st. While students can take advantage of this while their petition remains pending, by paying the premium processing fee, students will have their H-1B Receipt Notice faster than if they submit without premium processing. Upon getting the Receipt, foreign students can have their I-20 annotated with proof of continuing employment authorization, as soon as possible.

An important fact to keep in mind is that it's always possible to "upgrade" an already submitted petition to premium processing at a later date. If an employer chose not to pay the $1225 premium processing fee with the initial filing, they can always just submit a form and pay the fee at a later date. The main reason to do this is if the H-1B petition is still pending at the end of September. The "cap gap" provision mentioned above only carries through to September 30th. Even though the foreign national is permitted to remain in the U.S. while their case is still pending, they will no longer have employment authorization. Assuming that the foreign national is currently working for the sponsoring employer on their OPT, they will have to stop working until the H-1B is finally adjudicated.

The Gee Law Firm practices exclusively in U.S. immigration law, and routinely handles H-1B petitions submitted both with the premium processing fees, and without.